Memorial Hospital of Roxborough

National Labor Relations Board - Board Decisions

Sep 17, 1975

220 N.L.R.B. 402 (N.L.R.B. 1975)

402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Memorial Hospital of Roxborough and Local 835, In-
ternational Union of Operating Engineers, AFL-
CIO. Case 4-CA-7003
September 17, 1975
DECISION AND ORDER
Upon an amended charge filed on November 11,
1974,' by Local 835, International Union of Operat-
ing Engineers, AFL-CIO, herein called the Union,
and duly served on Memorial Hospital of Roxbor-
ough, herein called the Union, and duly served on
Memorial Hospital of Roxborough, herein called the
Respondent, the General Counsel of the National
Labor Relations Board, by the Acting Regional Di-
rector for Region 4, issued a complaint on November
29, 1974, against Respondent, alleging that Respon-
dent had engaged in and was engaging in unfair la-
bor practices affecting commerce within the meaning
of Section 8(a)(5) and (1) and Section 2(6) and (7) of
the National Labor Relations Act, as amended. Cop-
ies of the charge, complaint, and notice of hearing
before an Administrative Law Judge were duly
served on the parties to this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on or about March
25, 1974, following a secret ballot election conducted
by the Pennsylvania Labor Relations Board, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; and that commencing
on or about August 14, 1974, and at all times thereaf-
ter, Respondent has refused, and continues to date to
refuse, to bargain collectively with the Union as the
exclusive bargaining representative, although the
Union has requested and is requesting it to do so. On
December 9, 1974, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On February 21, 1975, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on April 25,
1975, the Board issued an order transferring the pro-
ceeding to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted.' Respondent there-
after filed a Motion To Dismiss Complaint and a
response to the Notice to Show Cause entitled
"Statement in Opposition to Motion for Summary
Judgment."
' The initial charge was filed on September 9, 1974.
2 217 NLRB No. 99 (1975).
Upon the entire record in this proceeding the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its answer and motion to dismiss the complaint,
Respondent argues , inter alia , that the Board should
not extend comity to the certification of the Union
issued by the Pennsylvania Labor Relations Board
(hereafter "the PLRB") because the election was
marred by objectionable conduct engaged in by the
Union, and the unit found appropriate therein is in-
imical to the provisions of the Act in light of the
recent hospital amendments? In addition, Respon-
dent alleges that it had no obligation to bargain be-
cause the Union did not request it to bargain after
August 25, 1974, the effective date of the hospital
amendments . On the other hand, the General Coun-
sel argues that the Board should extend comity to the
certification issued by the PLRB since matters relat-
ing to the election have been previously resolved by
the PLRB, and the unit in which the election was
conducted is not contrary to the provisions of the
Act. The General Counsel also contends that the
Union's initial demand for bargaining should be
viewed as a continuing one, and that the filing of a
charge on September 9, 1974, and an amended
charge on November 11, 1974, should be considered
as a renewal of the Union's request to bargain. We
agree with the General Counsel that the threshold
question before us is whether we should extend comi-
ty to the certification of the PLRB, thereby finding
the Respondent, under Section 8(a)(5) of the Act, is
obligated to bargain with the Union as the duly elect-
edxepresentative of the majority of employees in the
appropriate unit.
Our review of the facts reveals that, pursuant to
the Pennsylvania Public Employees Relations Act,
an election , conducted by the PLRB, was held on
October 10, 1973, in a unit of "all full and regular
part-time Maintenance Department Employees
(Maintenance-Plant Operations) ..." 4 in which a
majority of the employees selected the Union as their
representative. Thereafter, Respondent filed unfair
labor practice charges against the Union. The PLRB
I Public Law 93-360, effective August 25, 1974.
4 The complete unit description reads as follows:
All full and regular part-time Maintenance Department Employees
(Maintenance-Plant Operations) including : Engineers , Assistant Engi-
neers, Electricians , Electrician Helpers, Carpenters, Carpenter Helpers,
Plumbers , Plumber Helpers, Refrigeration and Air Conditioning Me-
chanics, Refrigeration and Airconditioning Mechanic Helpers, Paint-
ers, Painter Helpers, Senior Maintenance Mechanics, Maintenance
Mechanic Helpers and all other Maintenance Mechanics classifications
now recognized by the Employer; and excluding all other employees,
including but not limited to, office and clerical employees , medical
personnel , technicians, nurses, laboratory employees, orderlies , guards,
supervisors and first level supervisory personnel as defined in the Act.
220 NLRB No. 73
MEMORIAL HOSPITAL OF ROXBOROUGH
dismissed the charges on March 15, 1974, and issued
a certification of the Union which became final on
March 25, 1974. Respondent excepted to the dismiss-
al of the unfair labor practice charges, and on July 2,
1974, the PLRB issued a final order of dismissal.
Thereafter on August 14, 1974, the Union requested
bargaining and Respondent refused.
We will recognize the results of an election con-
ducted by a responsible state agency, and therefore
extend comity to a certification issued pursuant to
such an election, where the state agency's election
procedures conform to due-process requirements and
effectuate the policies of the Acts We have reviewed
the decisions, orders, and certifications issued by the
PLRB in the completed proceeding before that agen-
cy and have considered Respondent's exceptions and
supporting arguments to the authority of those docu-
ments. Having done so, we find no basis in due-pro-
cess standards and the policies embedded in the Act
to warrant a refusal by this Board to recognize the
authority of the certification of the PLRB in this pro-
ceeding. We shall, therefore, accord the certification
the same effect we would attach to one of our own .6
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or special
circumstances a respondent in a proceeding alleging
a violation of Section 8(a)(5) of the Act is not entitled
to relitigate issues which were or could have been
litigated in a prior representation proceeding .7
All issues raised by the Respondent in this pro-
ceeding were or could have been litigated in the prior
representation proceeding, and the Respondent does
not offer to adduce at a hearing any newly discov-
ered or previously unavailable evidence, nor does it
allege that any special circumstances exist herein
which would require the Board to reexamine the de-
cision made in the representation proceeding. We
therefore find that the Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding.
However, as indicated above, Respondent alleges
that it was under no obligation to bargain because
the Union did not request it to do so after August 25,
1974, the effective date of the hospital amendments.
The case relied upon by Respondent, United States
Postal Service,8 is inapposite for in that case, which
involved alleged violations of Section 8(a)(1) and (3)
of the Act, the Board found that "All operative
facts" of the unfair labor practices occurred "at a
3 Bluefield Produce & Provision Company, 117 NLRB 1660 (1957); The
West Indian Co., Ltd., 129 NLRB 1203 (1961 ); Screen Print Corporation, 151
NLRB 1266 (1965).
6 Cornell University, 183 NLRB 329 (1970).
7 See Pittsburgh Plate Glass Co. v. N.L.R B 313 U.S. 146, 162 (1941),
Rules and Regulations of the Board , Secs. 102.67(f) and 102.69(c).
a 200 NLRB 413 (1972).
403
time when plaintiffs were subject to the provisions of
the Executive Order" and not the National Labor
Relations Act. We note, in contrast, that a request to
bargain is a continuing one, and in addition that the
filing of the initial charge on September 9, 1974, and
the amended charge on November 11, 1974, acted to
renew the request to bargain? We hold therefore that
the Respondent is under a continuing obligation to
bargain with the Union and its refusal to do so vio-
lates Section 8(a)(5) and (1) of the Act. Accordingly,
we shall grant the General Counsel's Motion for
Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
At all times material herein, the Respondent has
been, and is now, a nonprofit corporation duly orga-
nized under, and existing by virture of, the laws of
the Commonwealth of Pennsylvania and is engaged
in providing health services in the Roxborough, Ma-
nayunk, and adjacent communities located in the
Commonwealth of Pennsylvania. During the past
year Respondent, in the course and conduct of its
business operations, performed services valued in ex-
cess of $500,000. During the same period, Respon-
dent purchased and received goods valued in excess
of $50,000 directly from firms located outside the
Commonwealth of Pennsylvania.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material here-
in, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that
it will effectuate the policies of the Act to assert juris-
diction herein.
II. THE LABOR ORGANIZATION INVOLVED
Local 835, International Union of Operating Engi-
neers , AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent con-
stitute a unit appropriate for collective-bargaining
9 Sewanee Coal Operators Association, 167 NLRB 172, In. 3 (1967).
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purposes within the meaning of Section 9(b) of the
Act:
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
All full and regular part-time Maintenance De-
partment Employees (Maintenance -Plant Oper-
ations) including : Engineers , Assistant Engi-
neers , Electricians , Electrician Helpers,
Carpenters , Carpenter Helpers , Plumbers,
Plumber Helpers , Refrigeration and Air-Condi-
tioning Mechanics , Refrigeration and Aircondi-
tioning Mechanic Helpers , Painters , Painter
Helpers , Senior Maintenance Mechanics, Main-
tenance Mechanic Helpers and all other Mainte-
nance Mechanics classifications now recognized
by the Employer; and excluding all other em-
ployees , including but not limited to, office and
clerical employees , medical personnel , techni-
cians , nurses , laboratory employees , orderlies,
guards , supervisors and first level supervisory
personnel as defined in the Act.
2. The certification
On October 10, 1973, a majority of the employees
of Respondent in said unit , in a secret ballot election
conducted under the supervision of the Pennsylvania
Labor Relations Board designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent . The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on March 25, 1974, and the
Union continues to be such exclusive representative
within the meaning of Section 9(a) of the Act.
B. The Request To Bargain and Respondent 's Refusal
Commencing on or about August 14, 1974, and at
all times thereafter, the Union has requested the Re-
spondent to bargain collectively with it as the exclu-
sive collective -bargaining representative of all the
employees in the above -described unit. Commencing
on or about August 14, 1974, and continuing at all
times thereafter to date , the Respondent has refused,
and continues to refuse , to recognize and bargain
with the Union as the exclusive representative for
collective-bargaining of all employees in said unit.
Accordingly, we find that the Respondent has,
since August 14, 1974, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1) of
the Act.
The activities of Respondent set forth in section
III, above , occurring in connection with its opera-
tions described in section I, above , have a close, inti-
mate , and substantial relationship to trade , traffic,
and commerce among the several States and tend to
lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8 (a)(5) and (1) of the Act, we shall
order that it cease and desist therefrom , and, upon
request , bargain collectively with the Union as the
exclusive representative of all employees in the ap-
propriate unit , and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the appro-
priate unit will be accorded the services of their se-
lected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate unit . See Mar Jac Poultry Company, Inc., 136
NLRB 785 (1962); Commerce Company d/b/a Lamar
Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600
(C.A. 5, 1964), cert . denied 379 U.S. 817 ( 1964); Bur-
nett Construction Company, 149 NLRB 1419, 1421
( 1964), enfd . 350 F.2d 57 (C.A. 10, 1965).
The Board , upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Memorial Hospital of Roxborough is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Local 835, International Union of Operating
Engineers , AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. All full and regular part-time Maintenance De-
partment Employees (Maintenance -Plant Opera-
tions) including : Engineers , Assistant Engineers,
Electricians, Electrician Helpers , Carpenters, Car-
penter Helpers, Plumbers , Plumber Helpers , Refrig-
eration and Air-Conditioning Mechanics , Refrigera-
tion and Airconditioning Mechanic Helpers,
Painters , Painter Helpers , Senior Maintenance Me-
chanics, Maintenance Mechanic Helpers and all
other Maintenance Mechanics classifications now
MEMORIAL HOSPITAL OF ROXBOROUGH
recognized by the Employer; and excluding all other
employees, including but not limited to, office and
clerical employees, medical personnel, technicians,
nurses, laboratory employees, orderlies, guards, su-
pervisors and first level supervisory personnel as de-
fined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
4. Since March 25, 1974, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about August 14, 1974, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropriate unit, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
in the exercise of the rights guaranteed to them in
Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that Respondent Memo-
rial Hospital of Roxborough, Pennsylvania, its offi-
cers, agents, successors, and assigns shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and con-
ditions of employment with Local 835, International
Union of Operating Engineers, AFL-CIO, as the ex-
clusive bargaining representative of its employees in
the following appropriate unit:
All full and regular part-time Maintenance De-
partment Employees (Maintenance-Plant Oper-
ations) including: Engineers, Assistant Engi-
neers, Electricians, Electrician Helpers,
Carpenters, Carpenter Helpers, Plumbers,
Plumber Helpers, Refrigeration and Air-Condi-
tioning Mechanics, Refrigeration and Aircondi-
tioning Mechanic Helpers, Painters, Painter
Helpers, Senior Maintenance Mechanics, Main-
405
tenance Mechanic Helpers and all other Mainte-
nance Mechanics classifications now recognized
by the Employer; and excluding all other em-
ployees, including but not limited to, office and
clerical employees, medical personnel, techni-
cians, nurses, laboratory employees, orderlies,
guards, supervisors and first level supervisory
personnel as defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit with
respect to rates of pay, wages, hours, and other terms
and conditions of employment, and, if an under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at Memorial Hospital of Roxborough
copies of the attached notice marked "Appendix." 10
Copies of said notice, on forms provided by the Re-
gional Director for Region 4, after being duly signed
by a Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 4, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
MEMBER PENELLO, dissenting:
Generally we give comity to state board certifica-
tions. However, in my opinion, in cases involving
nonprofit health care facilities, a relatively new area
of Board jurisdiction, we should not blindly give
comity where there has been a recent state board
certification and no intervening or prior collective-
bargaining history. Accordingly, I would deny both
the Respondent's Motion To Dismiss Complaint and
the General Counsel's Motion for Summary Judg-
ment, and instead I would remand the case to an
Administrative Law Judge for the purpose of con-
ducting a hearing, making findings of fact, and mak-
ing recommendations to the Board regarding the ap-
10 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,
propriateness of a maintenance unit at this facility.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
concerning rates of pay , wages, hours, and other
terms and conditions of employment with Local
835, International Union of Operating Engi-
neers, AFL-CIO, as the exclusive representative
of the employees in the bargaining unit de-
scribed below.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL , upon request , bargain with the
above-named Union , as the exclusive represen-
tative of all employees in the bargaining unit de-
scribed below, with respect to rates of pay, wag-
es, hours , and other terms and conditions of em-
ployment, and, if an understanding is reached,
embody such understanding in a signed agree-
ment . The bargaining unit is:
All full and regular part-time Maintenance
Department Employees (Maintenance-Plant
Operations) including : Engineers , Assistant
Electricians , Electrician Helpers , Carpenters,
Carpenter Helpers, Plumbers, Plumber Help-
ers, Refrigeration and Air Conditioning Me-
chanics , Refrigeration and Airconditioning
Mechanic Helpers , Painters, Painter Helpers,
Senior Maintenance Mechanics , Maintenance
Mechanic Helpers and all other Maintenance
Mechanics classifications now recognized by
the Employer ; and excluding all other em-
ployees , including but not limited to, office
and clerical employees , medical personnel,
technicians , nurses , laboratory employees, or-
derlies , guards , supervisors and first level su-
pervisory personnel as defined in the Act.
MEMORIAL HOSPITAL OF ROXBOROUGH